Kenneth Lee Willman v. Stu Sherman

Filing 4

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. IT IS ORDERED that on or before 4/10/2015, Petitioner show cause in writing as to why the Court should not recommend that this action be summarily dismissed with prejudice on the ground of untimeliness. (nbo)

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March 10, 2015

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Petitioner on 03-10-15 by TS

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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KENNETH LEE WILLMAN,

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Petitioner,

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v.

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STU SHERMAN, Warden,
Respondent.

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) No. ED CV 15-00374-JGB (DFM)
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) ORDER TO SHOW CAUSE
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On March 2, 2015, Petitioner Kenneth Willman filed a Petition for Writ

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of Habeas Corpus by a Person in State Custody (“Petition”) in this Court.

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From the face of the Petition, it appears that Petitioner pleaded guilty in the

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San Bernardino County Superior Court to five counts of committing a forcible

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lewd act upon a child and one count of sodomy by use of force. Petition at 21.1

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On August 3, 2011, Petitioner was sentenced to 42 years in state prison. Id. at

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2.

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All citations to the Petition are to the CM/ECF pagination.

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A.

The Petition Is Facially Untimely

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Under the Antiterrorism and Effective Death Penalty Act of 1996

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(“AEDPA”), a one-year limitations period applies to a federal petition for writ

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of habeas corpus filed by a person in state custody. See 28 U.S.C. § 2244(d)(1).

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The limitations period runs from the latest of four alternative accrual dates. See

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28 U.S.C. § 2244(d)(1)(A)-(D). In most cases, including this one, the

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limitations period begins running from “the date on which the judgment

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became final by the conclusion of direct review or the expiration of the time for

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seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

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Petitioner did not file an appeal. See Petition at 3. Because Petitioner did

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not appeal the judgment, his conviction became final 60 days after sentencing

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on October 2, 2011. See Cal. R. Ct. 8.308(a); Mendoza v. Carey, 449 F.3d

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1065, 1067 (9th Cir. 2006). Petitioner then had one year from the date his

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judgment became final on October 2, 2011, or until October 2, 2012, to timely

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file a habeas corpus petition in this Court. See Patterson v. Stewart, 251 F.3d

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1243, 1247 (9th Cir. 2001). However, Petitioner did not file the instant action

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until March 2, 2015, more than two years too late.

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From the face of the Petition, it does not appear that Petitioner has any

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basis for contending that he is entitled to a later trigger date under §

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2244(d)(1)(B). Nor does it appear that Petitioner has any basis for contending

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that he is entitled to a later trigger date under § 2244(d)(1)(C) because none of

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the claims alleged in the Petition appear to be based on a federal constitutional

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right that was initially recognized by the United States Supreme Court

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subsequent to the date his conviction became final and that has been made

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retroactively applicable to cases on collateral review. Finally, it does not

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appear that Petitioner has any basis for contending that he is entitled to a later

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trigger date under § 2244(d)(1)(D) because it appears from the face of the

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Petition that Petitioner was aware of the factual predicate of all his claims at
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the time of his guilty plea in 2010 and sentencing in 2011. See Hasan v.

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Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (statute of limitations begins

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to run when a prisoner “knows (or through diligence could discover) the

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important facts, not when the prisoner recognizes their legal significance”).

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B.

It Does Not Appear that Petitioner Is Entitled to Any Statutory or

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Equitable Tolling Which Would Make the Petition Timely

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Under AEDPA, “[t]he time during which a properly filed application for

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State post-conviction or other collateral review with respect to the pertinent

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judgment or claim is pending shall not be counted toward any period of

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limitation under this subsection.” 28 U.S.C. § 2244(d)(2). The entire period of

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time for a full round of collateral review, from the filing of a first state habeas

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petition to the time the last state habeas petition is denied, may be deemed

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“pending” and tolled, so long as the state petitioner proceeds in a hierarchical

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order from one lower state court to a higher state court. See Carey v. Saffold,

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536 U.S. 214, 223 (2002). This includes so-called “gap tolling” for the periods

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of time between such state habeas petitions. Id.

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As noted above, Petitioner’s conviction became final on October 2, 2011,

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giving him until October 2, 2012 to file a timely petition in this Court.

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Petitioner did not file his first state habeas petition in the San Bernardino

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County Superior Court until July 31, 2014. See Petition at 4. Petitioner is

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therefore not entitled to statutory tolling for any of his state habeas petitions

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because they were all filed after the one-year limitations period had already

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expired. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding

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that section 2244(d) “does not permit the reinitiation of the limitations period

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that has ended before the state petition was filed,” even if the state petition was

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timely filed).

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The Supreme Court has held that AEDPA’s one-year limitation period is
also subject to equitable tolling in appropriate cases. See Holland v. Florida,
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560 U.S. 605, 645 (2010). However, a habeas petitioner is entitled to equitable

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tolling only if he shows (1) that he has been pursuing his rights diligently; and

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(2) that “some extraordinary circumstance stood in his way.” See Pace v.

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DiGuglielmo, 544 U.S. 408, 418 (2005); see also Holland, 560 U.S. at 649.

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Here, Petitioner does not allege that any circumstances exist which would

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establish a right to equitable tolling.

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C.

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Conclusion
A district court has the authority to raise the statute of limitations issue

sua sponte when untimeliness is obvious on the face of the petition and to

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summarily dismiss a petition on that ground pursuant to Rule 4 of the Rules

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Governing Section 2254 Cases in the United States District Courts, so long as

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the court “provides the petitioner with adequate notice and an opportunity to

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respond.” See Nardi v. Stewart, 354 F.3d 1134, 1141 (9th Cir. 2004); Herbst v.

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Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

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IT THEREFORE IS ORDERED that, on or before April 10, 2015,

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Petitioner show cause in writing as to why the Court should not recommend

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that this action be summarily dismissed with prejudice on the ground of

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untimeliness.

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Dated: March 10, 2015
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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